Tag Archives: Bittorrent

On Oct. 13, 2014, James Osterberg a/k/a Iggy Pop, the godfather of punk rock and one of the original devout communist in the music scene gave a powerful speech as a part of the John Peel Lecture Series on BBC 6. The BBC 6 link is here.

In short, he rails against the oligarchy of music capitalism that has always exploited and stolen from artists. But he brings a new edge to the argument, namely that technology has given the power to exploit artists to almost everyone and created a culture of theft and moral decay.

But now, everybody’s a bootlegger, but not as cute, and there are people out there just stealing the stuff and saying don’t try to force me to pay. And that act of thieving will become a habit and that’s bad for everything.

***

So is the thieving that big a deal? Ethically, yes, and it destroys people because it’s a bad road you take….If I had to depend on what I actually get from sales I’d be tending bars between sets.

A common refrain in many of the BitTorrent litigation cases is “an IP address is not a person.” And this is true. But this refrain is repeated so often that many believe it to be a defense to a claim of copyright infringement. This is false.

What a plaintiff needs in a copyright case is evidence. An IP address may not be a person, but when it is tied to a specific person it is evidence. Unlike a criminal case, a plaintiff does not need evidence “beyond a reasonable doubt” or even “clear and convincing evidence.” A claim for copyright infringement is tried on a “preponderance” of the evidence standard. This means the scales of justice, all things being weighed, tip one way or the other even ever so slightly. For people that might like to think of it in percentages, a preponderance is not 90%, 75% or even 51%, it is more like 50.000001%.

The problem with may defenses in BitTorrent litigation is that defendants, and often their counsel, defend cases like they were defending a criminal case. Defendants often raise arguments supporting a “reasonable doubt.” This is understandable as those accused are being accused of theft, and there are possible criminal repercussions. But this is not the standard for civil copyright infringement claims. A reasonable doubt defense might sound good on TV, and is proper when a defendant is facing jail, but it falls flat in the real world of civil litigation and copyright infringement claims.

One such misguided example can be found in the pending case of TCYK v. Does 1-121, 3:13-cv-3127, C.D. Ill. In that case a defendant filed a motion to dismiss arguing an IP address alone is not enough and raising the claim that it is possible someone else used his Wi-Fi, that he had neighbors who might have downloaded the movie in question, that the plaintiffs were “copyright trolls,” and many of the other common stock “reasonable doubt” defenses.

This turned out to be a waste of time. The court made clear, “Plaintiff need not conclusively establish that Defendant Gordon was using the IP address” and the motion was summarily denied.

The defendant in question has now been ordered to answer the complaint against him by October 15, 2014.

Following the growing trend of judges nationwide, District Judge John W. Darrah has summarily dismissed a defendant’s claims that a subpoena related to a complaint filed for copyright infringement via BitTorrent was part of a “fishing expedition,” a “bogus lawsuit,” and “troll case” for extortion that undermined the judicial process.

The court summarily rejected all of the arguments as hollow and made clear:

The information sought is particularly discoverable, as Plaintiff would “otherwise be unable to maintain . . . litigation, as it has no other way of identifying the defendants.” TCYK, LLC v. Does 1-87, at *2. Any argument that the subpoena should be quashed because the information will not identify infringing parties “demonstrates a lack of understanding of the basic scope of discovery under federal rules… Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” reFX Audio Software, Inc. v. Does 1-111, 13-cv-1795, 2013 WL 3867656 (N.D. Ill. July 23, 2013) (citing Fed.R.Civ.P. 26(b)(1)).

The outcome of this: Due to defendant’s (or their attorney’s) “lack of understanding” the costs and fees associated with this case went up. Defendants who willfully infringe as occurs with BitTorrent infringement, pay all costs and fees for both sides. As such a defendant is now likely going to have to pay not only for their own “lack of understanding,” but they will likely have to pay the costs and fees of the plaintiff as well.

Worth reading for an appreciation of exactly what is going on are the Motion to Quash (Docket 15), the Opposition (Docket 19) and the Memorandum Opinion and Order of the court (Docket 26.)

One of the most active parties in enforcing against BitTorrent downloads is Malibu Media, who releases adult content under the X-Art brand. While the standard mantra is BitTorrent is largely innocent and about ‘file sharing,’ this is like calling a typhoon ‘rain sharing.’ The level of content distribution is far from trivial or inconsequential.

In a recent filing in the Southern District of Ohio (1:14-cv-493-TSB, Dkt. 9), Malibu Media has let the court see under the hood at some of what is going on. Depending on how you look at the data, Malibu has records of about 12,000 distinct IP addresses in Ohio sharing and distributing their content through BitTorrent. Based on this number, when compared to the population of Ohio (~12 million), there is evidence that approximately 1 in 1000 people in Ohio are ‘sharing’ X-Art’s media through BitTorrent.

Malibu Media is by all accounts one of the most active copyright enforcement litigants in the United States with some sources reporting they filed 40% of all copyright suits in 2014. But with 172 suits in Ohio, and 12,000 known infringers, Malibu’s prolific filing of complaints is addressing less than 2% of the people stealing their work. Some may complain there are too many copyright suits filed (usually those who are being sued / have been caught) but the ratio of infringers to lawsuits is a disproportionate 70:1. For any other kind of theft, 1 in 70 would lead to the calls for more enforcement, not complaints about excessive enforcement. If one in 70 cars were stolen, or if your car were stolen every 70 days, there would be a national call to action.

With respect to damages claimed and awarded, many may argue the $750.00 statutory minimum for copyright enforcement is draconian, but a one-month subscription to Malibu Media’s web site is $29.95. If Malibu Media’s claims are against 1 in 70 infringers, then the numbers pencil out to damages of at least $2,000 per defendant just to break even ($29.95 x 70 = $2,096.50). In light of the extensive nature of the problem, the $750.00 statutory minimum starts to seem very reasonable.

Hawaii now joins the majority of states which allow joined BitTorrent copyright enforcement cases. In early 2013 the Prenda scam was uncovered where a group of attorneys were revealed to be using shell games to operate a honeypot scheme for people that downloaded porn via BitTorrent. In response courts across the nation clamped down on all BitTorrent cases as a precaution. As the courts have become better educated they are recognizing the Prenda scam was unique and that joined BitTorrent copyright litigation is the most efficient and best way to enforce copyrights, especially in light of the massive scale of BitTorrent related infringement.

Single party cases are still being filed in many jurisdictions, but some studies put the average costs and attorney fees for copyright litigation at $300,000 to $2,000,000+ *. (Note, this is a National average for all copyright cases and many cases are resolved for significantly less.) However the courts, and many wise defendants, recognize that by permitting joinder costs can be reduced dramatically, permitting rights enforcement and allowing cases to be economically resolved for less than 10% of the national average.

Without any motion before the court, Judge Tharp has addressed the issue of BitTorrent swarm joinder and the ruling of AF Holdings, LLC v. Does, 1-1058, 752 F.3d 990 (D.C. Cir. 2014), and has found that though in extreme cases joiner may not be proper, in the matters of the pending cases relevant to his ruling joinder is indeed proper for BitTorrent copyright claims, at least for initial discovery. The D.C. Federal Circuit is the only appellate court to address this issue and in the case of 1000+ defendants, spread out over five months, the court found that joinder was not proper. Judge Tharp, on his own (sua sponte) rejected the strict D. C. Federal Circuit analysis and the common argument that would require all parties be in a swarm a the same time, and found that such a requirement:

…appears to overlook the fact that the pieces of the file that Doe 1 distributed directly to other Does who were in the swarm contemporaneously with Doe 1 were in turn subsequently distributed by them to the Does who joined the swarm after Doe 1 left it; in the context of a swarm, there is only a single digital file that is distributed among the members. Thus, it cannot be said that subsequent transfers of that file are even entirely “independent” of the earlier transfers; all of the transfers involve the same file and the earlier transfers of the pieces of that file facilitate the later transfers. Moreover, nothing in Rule 20 suggests that joinder requires a direct transaction between every defendant.

…

…permitting joinder among noncontemporaneous swarm participants does not seem novel or extreme; the law governing joint ventures and conspiracies, for example, permits plaintiffs to proceed against groups of defendants who engaged in a cooperative endeavor to facilitate an unlawful object whether or not all of the members of the group took part in all of the actions of the group and without regard to when the members joined the group.

The judge acknowledged:

Though there are strong arguments on both sides of this issue, entering a sue sponte finding of misjoinder of the Doe defendants would, in the Court’s judgment, be inappropriate at this early stage.

…

Though the plaintiff may issue subpoenas to determine the Doe defendants’ true identities, the plaintiff is prohibited from publishing the defendants’ identities in any way without leave.

…

… the Court finds that allowing the defendants to proceed by pseudonym is appropriate at this preliminary stage of the litigation, when no defendant has been put on notice of this suit. Once defendants have received such notice, the Court will revisit the issue of whether the names of the defendants in this matter may be publicly disclosed.

While the proponents of BitTorrent piracy may have expected the D.C. Circuit to end all joined lawsuits nationwide, this is clearly not the case as several districts including those in Texas, Colorado, Illinois and Washington have subsequently made clear that joined cases are going forward.

A part of a series of notes exploring BitTorrent copyright defenses that sound good, but do little more than churn or run up a bill. See Part One: Assumption of Risk

In Chinese they have a phrase zhilaohu (紙老虎) which translates to paper tiger. This phrase stands for something that seems fierce and powerful, but is really no more threatening than a piece of paper. The paper tiger is about imagery and illusion that is only meant to fool the gullible. In the context of false defenses raised in response to claims, I call such defenses paper fences.

A stock or form paper fence defense that shows up in many of the answers filed both by attorneys and people appearing on their own (pro se) is the de miminis act, or claiming that the amount that was copied was less than the whole or so small that is does not matter and there is no violation. This sounds good, but on analysis, fails in the realm of BitTorrent copyright claims. Most significantly, a de minims defense starts off by essentially stating, “I did it but….”

First, a brief review of what constitutes a de minimis act: A de minimis act is one that is so minor as to be inconsequential. This sounds like a good thing to say if you want to argue you only copied a little bit of a movie. But with an understanding of what it means and how it is used in the law the “paper” aspect of this defense becomes apparent. Traditionally de minimis is used for things like in the context of how long a defendant can be detained in a traffic stop, such as to ask one or two more questions, making a short delay a de minimis length of time. United States v. Stepp, 680 F.3d 651, 662 (6th Cir. 2012). Or in the case of a claim of littering when the act involved two matches. People V. Feldman, 342 N.YS.2d 956 (N.Y Crim. Ct. 1973). It is also a standard applied pollution or contamination regulations where the contamination is so minor as to be a non-issue, especially in light of new technology that allows the detection of just a few molecules. Ober v. Whitman, 243 F.3d 1190 (9th Cir., 2001).

To the extent de minimis has been applied in the context of copyright, it has generally been in the analysis of similarity, or as a component of fair use. These have been identified as copying that has occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity, known as trivial copying, and as might be relevant as a component of a “fair use” defense. Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 74-75 (2d Cir.1997).

In essence, the de minimis defense is applicable when the question is how similar the copy might be from the original, such as how much Song-A sounds like Song-B, or as one part of the “fair use” defense, which had a multi-part analysis that includes the quantitative amount copied as one of the factors. (Fair use is a whole other issue, and for other reasons beyond this note similarly not applicable to BitTorrent copyright infringement.)

In the context of BitTorrent, a de minimis or “partial copy” assertion are simply not valid defenses. As the U.S. Supreme Court held, “[A] taking may not be excused merely because it is insubstantial with respect to the infringing work…. `[N]o plagiarist can excuse the wrong by showing how much of his work he did not pirate.'” Harper & Row v. Nation Enters., 471 U.S. 539, 565, 105 S.Ct. at 2233, quoting Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir.1936). Thus, there is no de minimis (or the like) defense to BitTorrent infringement.

Granted, a de minimis type argument may be applied to argue for the statutory minimum of $750.00 in damages, but this is not an affirmative defense to liability. And the costs to raise the defense in an answer and deal with the associated motions will likely be thousands of dollars, paid for by the defendant.

As a reminder – The defense to a BitTorrent copyright infringement claim is the defense that the defendant did not do it and was not involved in any way. The rest is often just paper fences and, “a tale told by an idiot, full of sound and fury signifying nothing.” – Macbeth.

In Chinese they have a phrase zhilaohu (紙老虎) which translates to paper tiger. This phrase stands for something that seems fierce and powerful, but is really no more threatening than a piece of paper. The paper tiger is about imagery and illusion that is only meant to fool the gullible.

In litigation, there seems to be a growing trend to the use of affirmative defenses which are really just paper tigers, these might be called paper fences. These paper fences are not real defenses, just extra words that someone can throw on a page to justify their bill. Sometimes I wonder if even the people that file them on behalf of their client’s believe the false hope these paper fences represent.

Where these seem to be showing up more frequently are in the BitTorrent copyright cases. There are blogs and message boards where such things get shared and passed around among attorneys, and while everyone likes to share an idea, rarely does anyone share its failure. Someone dreams up an idea that sounds good, then word gets passed around and pretty soon everyone is adding the newest paper fence to his or her filings without paying attention to the rulings of the courts.

Assumption of Risk is one such paper fence that has no place in BitTorrent copyright defense. First, it is good to understand what the defense really means. An assumption of risk defense essentially states the plaintiff is involved in such risky behavior that it is expected that defendant will be reckless, as such the plaintiff accepts a possibility of injury.

Now look at why this does this not belong in a BitTorrent copyright defense or any copyright defense for that matter.

– Assumption of risk first dictates that the defendant injured the plaintiff. The argument is the plaintiff, whose rights were infringed knew or should have known people would try and copy their work. To its logical conclusion the defendant comes to court and says, “I did it, but they should have expected me to do it.” To allow an assumption of risk defense in copyright law would negate all copyright law.

– Assumption of risk is only valid against reckless conduct. A defendant will still be liable for any willful conduct. In BitTorrent infringement there is no reckless conduct. A defendant does not accidentally download a torrent file. All BitTorrent copyright infringement is willful.

There are other reasons, but suffice it to say assumption of risk has no place in copyright infringement cases and is nothing more than a paper fence that sounds good enough only to be sold to client to justify a bill. Just a little research reveals that assumption of risk has never prevailed as a copyright defense. As Judge Hegerty recently ruled, “Because an “assumption of risk” defense does not apply to copyright infringement claims, this defense cannot succeed as a matter of law and should be stricken.” Malibu Media, LLC v. John Butler, 1:13-cv-02707, (D. Col. Aug. 13, 2014).

As I review these cases look for future notes on other paper fences that often show up in BitTorrent Copyright cases including: Failure to State a Claim, De Minimis Infringement, and the counter claim of Non-Infringement, all of which seem to be making the rounds and do little more than run up costs and fees.

There really is only one defense to the copyright infringement claim, and that is the defense that the defendant did not do it and was not involved in any way. The rest and often just paper fences and, “a tale told by an idiot, full of sound and fury signifying nothing.” – Macbeth.

An attorney’s job is to know the facts and law and argue the facts and the law. But if the facts are against you and the law is against you, then you need to be creative. If not to win, to at least justify the time and billing for your actions. And this leads to a lot of creative arguments, and sometimes plagiarism, even if only to plagiarize other failed arguments. It is hard for an attorney to make a living telling clients, “You don’t have a case, and there is nothing I can do.” (Or more accurately, nothing I can bill you for…) So an attorney needs to come up with something that at least looks good on paper. After all, a client is rarely able to do the proper legal research to know that an attorney only managed to dig up a dead argument, polish it off, and sell it again as new.

An instance of this recycling can be seen in a recent spate of filings in BitTorrent litigation arguing investigations need to be licensed by the state of the defendant or the case should be thrown out on a technicality.

The argument goes something like this: Since most states have laws that require an investigator be licensed for their investigations to produce admissible evidence, an unlicensed investigator’s evidence should not be admitted.

This argument sounds good, but like many of the other defenses that get sold to defendants it does little more than provide temporary false hope and drive up legal fees that are usually then paid by the defendant. The courts that have looked at this have universally rejected this argument on a number of grounds. The internet does not recognize a state line, so such limitations are largely meaningless in the digital world.

As stated several years ago by Judge Nancy Gertner in SONY BMG Music Entertainment v. Tenenbaum:

“The Defendant raises a number of arguments why MediaSentry’s monitoring was illegal under state and federal wiretap laws, as well as state licensing requirements for private investigators. See Mass. Gen. L. ch. 272, s. 99(A); Mass. Gen. L. ch. 147, s. 22. Given that MediaSentry did not conduct its monitoring from Massachusetts, does not maintain a presence in the state, and the computer on which MediaSentry detected Tenenbaum’s file-sharing was located in Rhode Island at the time, Massachusetts’ wiretapping and licensing provisions would not seem to reach the conduct at issue at all. See Connelly Aff. (document # 866-5); Cox Comm. Subpoena Resp. (document # 866-9). Regardless of which state’s licensing requirements are invoked, the Court previously considered a similar motion to strike in London-Sire Records, Inc. v. Arista Records LLC, Case No. 04-12434, holding that “[n]either the rules of evidence nor the Fourth Amendment bar the use of evidence arguably unlawfully obtained by private parties in their private suits.” Jan. 9, 2009 Mem. and Order at 3-4 (document # 230). Tenenbaum’s remedy for a search he believes illegal under state laws is not exclusion of this evidence, but a separate action against MediaSentry or its employer under the state statutes he identifies. That leaves only the federal wiretapping provisions. See Electronic Communications Wiretap Act, 18 U.S.C. 2510 et seq. Here, Tenenbaum proposes a difficult analogy when he compares MediaSentry’s activities to illegal eavesdropping. The Defendant made his computer’s “shared folder” visible to the world of KazaA users, for the very purpose of allowing others to view and download its contents — an invitation that MediaSentry accepted just as any other KazaA user could have. The electronic communications that ensued were conducted with the consent of both parties. As a result, it is bizarre indeed to describe MediaSentry’s decision to examine and record its counterpart’s IP address as eavesdropping, as though federal law prohibited MediaSentry from determining where the data sent to it from Tenenbaum’s computer originated. It is as if one received a letter in the mail, but was not allowed to look at the return address.This principle makes no more sense on the internet than in the non-digital world, and it is not encompassed by the Act. The type of IP information transmitted by KazaA and recorded by MediaSentry is accessible to almost anyone with a computer. Even if viewed as an “interception” — a characterization that the Court accepts here only as a hypothetical — MediaSentry’s monitoring activities fall within the statute’s safe harbor for interceptions by a party to the communication. See 18 U.S.C. 2511(1), 2511(2)(d); see also R.I. Stat. s. 12-5.1-1 et seq. (one-party consent rule parallel to the federal statute). Tenenbaum transmitted the digital files at issue to MediaSentry, making it a party to the communication, and he has not shown here that any interception occurred with the purpose of committing a “criminal or tortious act” under state or federal law. Id.; see also Order on Motions in Limine, Capitol Records Inc. v. Thomas-Rasset, Case No. 06-1497 (D. Minn. June 11, 2009).
The Motion to Suppress MediaSentry Evidence [853] is DENIED.” (Gaudet, Jennifer)

In the Tenenbaum case the defendant fought to the bitter end, even trying to take their arguments to the U.S. Supreme Court, but still ended up owing $675,000 in damages. Since Tenenbaum no judge has held differently. But the argument still sounds good and attorneys are still trying to sell it to their clients.

Plaintiff’s claim is plausible on its face and should not be dismissed. Furthermore, Doe Defendant does not have standing to challenge the subpoena issued by Plaintiff to ISP Time Warner Cable as there is no right or privilege associated with an internet service subscription. Finally, a protective order is inappropriate as sufficient safeguards were put in place when the Court granted Plaintiff leave to conduct early discovery.
Accordingly and upon consideration, it is RECOMMENDED that:
(1) Doe Defendant’s Omnibus Motion to Dismiss Action with Motion to Quash Non-Party Subpeonas or Enter Protective Order, with Incorporated Memorandum of Law (Dkt. 8) be DENIED.

Over the last two years there have been a number of twists and turns in the world of BitTorrent copyright infringement cases. In early 2013 the Prenda scam was uncovered where a group of attorneys were revealed to be using shell games to operate a honeypot scheme for people that downloaded porn via BitTorrent. Courts across the nation clamped down on all BitTorrent cases as a precaution. More recently with the news that the major studio film Expendables 3 may have lost tens of millions, if not more due to BitTorrent piracy, BitTorrent cases are again receiving renewed interest, though now in a different light.

This whole cycle is readily observed in Washington State, where initially joined cases were allowed by the courts. Following Prenda, the courts took a close look at the cases and at one point dismissed joined cases across the board. Elf-Man LLC v. Cariveau, No. C13-0507RSL,(W.D. Wash., Jan.17, 2013). But on review and scrutiny, the Court reversed itself and cautiously allowed the cases to proceed. Elf-Man LLC v. Cariveau, No. C13-0507RSL, (W.D. Wash., Aug. 7, 2013).

More recently the Washington courts have again affirmed that it will allow joined cases against BitTorrent infringers in a case involving the piracy of Dallas Buyers Club.